2017-08-01

Ramallah

West Bank

His Excellency the Legal Adviser to Mr. President

Minister Hasan Al-Ouri,

Subject: MUSAWA’s position on the draft decree-law for 2017 on the early retirement of public employees, issued by Mr. President in Ramallah on 22/07/2017

MUSAWA – The Palestinian Center for the Independence of the Judiciary and the Legal Profession extend their greetings to you, noting that we have looked closely at the draft decree-law for 2017 on the early retirement of public employees, issued by Mr. President in Ramallah on 22/07/2017. Taking into consideration the draft decree-law’s influence on social stability and job security, and sticking to our position demanding not to over-enact decree-laws and to stop issuing them, we ask your Excellency to look thoroughly into our view in this regard and to act upon it in order to eliminate its impact in case it will be published in the official Gazette, hence entering into force. We hope that our notes will be addressed and responded-to by making the necessary changes, whether by adding, deleting or modifying the content of the draft decree-law. Our notes are as follows:

1- What is striking about the still-ineffective decree-law until the moment is that an employee is retired early following a decision from the government without the employee’s request and at any time the government sees as appropriate. Accordingly, the decree-law does not actually amend the existing retirement laws but rather introduces new special provisions extending the powers of the government and granting it the authority to retire the employee at any time without the need for his/her consent or even his/her knowledge of it.

2- The decree-law came void of a statement of the objective and procedural criteria that the government must bear in mind and abide-by in the exercise of the powers granted to it to retire someone early, including the reasons lying behind it; the employee’s performance and behavior; the principle of equality between the early retired employee and his/her colleagues; the public interest standards; damages to the employee; the legal rules and procedures that should be borne in mind; the time of its entry into force; the right of the employee to appeal; the period available for him/her to appeal the decision of his/her early retirement; and the need to subject the decision of early retirement to judicial control prior to being effective, pursuant to the constitutional rules set out in the Basic Law.

3- The codification of the above-mentioned issues ensures that the power is not abused, that the principle of equality is not violated, that early retirement is not used for personal reasons and that it is not used for political purposes or personal interests.

4- It raises questions about defining the period of validity of the decree-law with a time limit of six months, which possibly marks the decree-law with an administrative nature, and removes it from the circle of the legislation that is founded on a general rule and becomes valid for a long period of time, and it is repealed or amended based on the results of its enforcement.

5- We consider the laws related to retirement adequate, as they protect the rights of employees who request early retirement, and enable the administration to keep the public interest in mind in this regard. Therefore, there is no need to issue such a decree-law, knowing that the Civil Service Law in force and the legislation governing retirement are sufficient when it comes to regulating the rights of retired employees, be it ordinary retirement, early retirement upon the request of the employee himself/herself or early retirement that comes due to a decision by the competent administration for the public interest. Also, the aforementioned law offers a description of their financial dues and how they are calculated.

6- The laws governing retirement and this decree-law are particularly important given that the number of public employees compared to the overall number of population is very high, and is similar to their proportion in neighboring countries. If the decree-law remains void of the aforementioned standards and justifications, and if the power the decree-law grants to the governmental administration is abused or used with no clear boundaries, this would negatively affect the judicial control over it, which in turn would influence the security of a large segment of society, which in turn would negatively affect the unity and security of the society as a whole.

7- Keeping the decree-law in effect would overwhelm the public treasury with substantial financial obligations if used freely and in cases to which the decree-law does not apply, or if it is used to deal with situations that require treatment in other ways, such as dismissal from the job for justifiable reasons. 

The Honorable Adviser,

MUSAWA hopes that your Excellency will act upon this memo by taking the appropriate legal action regarding the matter prior to the duly issuance of the decree-law.

With all due respect,

Issued on 30/07/2017

Chairman of MUSAWA’s Board of Directors

Advocate Yasser Jabr